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Robinson v. City of Harvey

October 7, 2008



This excessive force civil rights case is before the court on the "Second Motion" of plaintiff's counsel for an award under 42 U.S.C § 1988 of attorneys' fees and litigation expenses against the City of Harvey ("Harvey"), the municipal defendant. On October 24, 2004, this court (the case was at that time assigned to Judge Paul Plunkett of this court) awarded fees on the "original motion" in the amount of $507,183 as well as costs and expenses totaling $14,507.00 for a period from the case filing through approximately November 1, 2002. Harvey and the officer defendant, Manuel Escalante, appealed from the judgment for fees as well as a judgment entered July 31, 2002 on a jury verdict awarding $25,000 in compensatory damages against Harvey and Escalante, and $250,000 in punitive damages against Escalante. The appeal from the judgment on the jury verdict was dismissed and the judgment for fees was affirmed. Robinson v. City of Harvey, 489 F.3d 864 (7th Cir. 2007). The Second Motion represents expenses and attorney time devoted to this case from November, 2002 through March 28, 2008.

Plaintiff's counsel seek $270,309.00 representing 757.65 hours of attorney time ranging from $270 to $395 per hour. In addition they request $4,622 reimbursement for out-of-pocket litigation expenses. Plaintiff's counsel and Harvey's counsel (Escalante's counsel have not participated in this aspect of the litigation) have filed a joint statement as required by Local Rule 54.3(e) setting out the issues that have prevented their resolution of this matter without court action.

This decision assumes the parties' familiarity with the history of this case including the Seventh Circuit's opinion on the appeal. It applies the same legal standards and method as used by Judge Plunkett in the fee decisions of August 12, 2004 [No. 251] and October 20, 2004 [No. 260], as set out in the court of appeals' opinion, 489 F.3d at 872, and Hensley v. Eckerhart, 461 U.S. 424 (1983). Only disputed matters are discussed in this opinion, but the court has reviewed all of the materials submitted by the parties in reaching its conclusions.

I. Calculating the Lodestar

The lodestar is determined by calculating for each moving attorney the number of hours reasonably expended and multiplying that number by a reasonable hourly rate. "An award of the originally calculated lodestar is presumptively reasonable, and it is the City's burden to convince [the court] that a lower rate is required." Robinson, 489 F.3d at 872 (emphasis in original, citations omitted). The Second Motion is summarized as follows:

LawyerHoursRateTotals Jon Loevy473.75$395$187,131 Russell Barnett156.40$235$36,754 Arthur Loevy36.75$470$17,272 Michael Kanovitz46.50$370$17, 205 Russell Ainsworth44.25$270$11,947 Totals713.40 $270,309

A. Hours Component

Harvey does not object to the amount of time devoted to the tasks itemized in the motion but it does object to fees incurred in several categories. Harvey submits it is responsible for only $69,686.25, representing time spent on the appeal, 204.25 hours at rates from $250 to $365; or, short of that, it objects to all fees related to plaintiff's effort to collect on the punitive damages judgment against Escalante and other categories as set out below.

1. Fees Incurred Prior to the Judgment on the Original Motion are Recoverable

This dispute is divided into two periods: (a) fees incurred between November 2002, the end date of fees claimed on the original motion, and August 14, 2003, the filing date of the original motion, and (b) fees incurred after August 14, 2003 through October 20, 2004, the date of the award on the original motion. Harvey contends that principles of res judicata bar additional fees incurred in the district court for both periods because plaintiff could have filed a motion for those fees during the time the original motion was pending. If not barred, Harvey argues, the claim was waived.

a. Fees Incurred Between November 1, 2002 and August 14, 2003 are Recoverable

The original motion covered a period from early 1999 to early November, 2002. Plaintiff's counsel represent that the hours within the Second Motion for the period from November 2002 through August 14, 2003 represent primarily hours spent litigating the fee motion.*fn1 Counsel state they did not include the hours in the original motion because (a) there had not yet been any "meet and confer" for that period; (b) the appeal was pending, so they knew a supplemental motion would be necessary if plaintiff prevailed on the appeal; and (c) they believed that the law did not require it. Pl.'s Supplemental Petition at 7-8.

In two rulings dated November 8 and 15, 2007 this court ruled with respect to the period from August 15, 2003 to October 20, 2004 that plaintiff's claim was neither barred by res judicata nor waived [Nos. 320, 325]. Plaintiff contends that the ruling does not foreclose fees prior to August 13, 2003; rather, the court used that date as the benchmark because Harvey framed the issue as whether res judicata barred plaintiff from seeking fees incurred after August 15, 2003.

Contrary to plaintiff's assertion, Harvey's memorandum argued that "any claim for fees that predates the judgment of October 20, 2004, is barred by res judicata." [No. 312, p.3]. It is true, however, that the ruling assumes that plaintiff's original motion included fees incurred to the date of filing*fn2 and analyzes the legal authorities as necessary to decide the question on those facts. Relying on that assumption, the court ruled that the date of filing was the conclusion of events that were the basis for entry of judgment on the original motion: "[T]he filing of the petition on August 13, 2003 is the date the evidence closed." [No. 320, p.2, first full para.]. Under that assumption the court reasoned based on Singer Co. v. Skil Corp., 803 F.2d 336 (7th Cir. 1986), that res judicata would bar only a later claim for fees that pre-dated August 13, 2003.

[No. 320, p. 2]. Under that reasoning, if one assumes that all Second Motion fees dating pre-August 13, 2003 (or, as Harvey argued, up to pre-October 20, 2004) could have been determined within the original motion, then the decision implies that any such fees would now be barred. On the other hand, if one assumes that these fees could not have been ...

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